Transcript Protecting Your Investigation

James McCoy
The McCoy Law Firm
12400 Coit Rd., Ste. 560
Dallas, Texas 75251
(214) 292-2603
[email protected]
© The McCoy Law Firm 2012
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Competing Goals in Investigation
◦ Gather information while fresh
◦ Assess potential risks
◦ Identify coverage issues
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Work Product Privilege
Attorney Client Privilege
Expert Privilege
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Formerly known as the Attorney Work Product
Privilege
The Cornerstone in Protecting a File
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Work product comprises:
◦ Material prepared or mental impressions developed
in anticipation of litigation or trial by or for a party
or a party’s representatives, including, a party’s
attorneys, sureties, indemnitors, insurers,
employees or agents; or
◦ A communication made in anticipation of litigation
or for trial between a party and a party’s
representatives, including, a party’s attorneys,
sureties, indemnitors, insurers, etc.
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Most critical component
If you don’t have this, you don’t have
anything
The rules of civil procedure do not define
“anticipation of litigation”
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National Tank v. Brotherton (Tex. 1993)
◦ Objective component
 a reasonable person would have concluded from the
totality of circumstances surrounding the investigation
that there was a substantial chance litigation would
ensure
◦ Subjective component
 the party resisting discovery believed in good faith that
there was a substantial chance litigation would ensue
and conducted the investigation for purposes of
preparing for the litigation
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Employer knows this employee is suit happy
Employer has no reason to believe employee
would ever sue until he is served with suit
papers
Is this the type of injury that would likely
throw off a suit?
Routine accident reports will never be
privileged
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◦ Identity of witnesses, witness statements and
contentions of the parties
◦ Trial exhibits ordered disclosed
◦ Identification of potential parties or persons with
knowledge of relevant facts
◦ Any photograph that a party intends to offer into
evidence
◦ Any product falling within exception to Evidence
Rule 503(d)
◦ Witness statements
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Core attorney work product is absolutely
privileged
◦ By the attorney or his representative
 Written memos, case evaluation -- containing mental
impressions, opinions, conclusions or legal theories
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All other material can be produced upon
showing of substantial need and undue
hardship
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Overlaps work product privilege
Who is Entitled?
◦ Client and/or representative and Lawyer and/or
representative
◦ Lawyer and his representative
◦ Client or lawyer and another party in pending action
regarding matter of common interest
◦ Communications between representatives of client
◦ Lawyers and their representatives representing
same client
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Person, corporation or other entity who is
rendered professional legal services by a
lawyer or who consults with a lawyer with a
view toward obtaining professional legal
services
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A person having authority to obtain
professional legal services or to act on the
legal advice
Any person who for purpose of effectuating
legal representation for client makes or
receives confidential communication while
acting in scope of employment for client
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Any person who the client believes is
authorized to practice law in any state or
nation
Lawyer’s representatives are those employed
by lawyer to assist lawyer in rendition of
professional legal services
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Depends on speaker’s intent
Generally, confidential if not intended to be
disclosed to third persons
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Survives termination of attorney client
relationship
Survives conclusion of matter that caused
representation
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◦ Crime/fraud exception
◦ Communications relevant to parties who claim part
of estate
◦ Breach of attorney client relationship
◦ Attested document for which attorney is attesting
witness
◦ No privilege for actions between multiple clients
◦ Communications concerning fee arrangement
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Hire after litigation anticipated, if possible
Consulting expert only discoverable if his
opinions shown to testifying expert
Best to have defense counsel do the hiring
◦ Plaintiff’s attorney can potentially reach this witness
if carrier does the hiring
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Unclear if expert’s materials would constitute
“core” work product
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Voluntary disclosure waives privilege
Consenting to disclosure of any significant
part of privilege waives privilege
Don’t turn file over to anybody other than the
insured or the attorney
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Written demand letter is best for establishing
anticipation of litigation
If plaintiff has attorney, document your file
that he threatened to sue
◦ Representation by an attorney alone doesn’t attach
privilege
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Do a routine and “special” investigation
Utilize defense counsel to conduct sensitive
investigations
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Not Privileged
Tape good statements -- Summarize bad
statements
Notes have better likelihood of remaining
privileged
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Be clear in assignment
Communicate clearly as to exactly what you
want and what you don’t want
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